Saturday, October 22, 2016

The federal agency that controls more than $1 trillion in Medicare and Medicaid funding has moved to prevent nursing homes
from forcing claims of elder abuse, sexual harassment and even wrongful
death into the private system of justice known as arbitration.

An agency within the Health and Human Services Department
on Wednesday issued a rule that bars any nursing home that receives
federal funding from requiring that its residents resolve any disputes
in arbitration, instead of court.

The rule, which would affect nursing homes with 1.5 million residents, promises to deliver major new protections.

Clauses
embedded in the fine print of nursing home admissions contracts have
pushed disputes about safety and the quality of care out of public view.

The
system has helped the nursing home industry reduce its legal costs, but
it has stymied the families of nursing home residents from getting
justice, even in the case of murder.

A
case involving a 100-year-old woman who was found murdered in a nursing
home, strangled by her roommate, was initially blocked from court. So
was a case brought by the family of a 94-year-old woman who died at a
nursing home in Murrysville, Pa., from a head wound. The cases were the
subject of a front-page article in The New York Times last November.

“The
sad reality is that today too many Americans must choose between
forfeiting their legal rights and getting adequate medical care,”
Senator Patrick Leahy, a Democrat of Vermont, said in a statement on
Wednesday.

The
nursing home industry reacted strongly against the change. Mark
Parkinson, the president and chief executive of the American Health Care
Association, a trade group, said in a statement on Wednesday that the
change on arbitration “clearly exceeds” the agency’s statutory authority
and was “wholly unnecessary to protect residents’ health and safety.”

The
new rule on arbitration came after officials in 16 states and the
District of Columbia urged the government to cut off funding to nursing
homes that use the clauses, arguing that arbitration kept patterns of
wrongdoing hidden from prospective residents and their families.

With
its decision, the Centers for Medicare and Medicaid Services, an agency
under Health and Human Services, has restored a fundamental right of
millions of elderly Americans across the country: their day in court.

It
is the most significant overhaul of the agency’s rules governing
federal funding of long-term care facilities in more than two decades.

And
the new rule is the latest effort by the Obama administration to rein
in arbitration’s parallel system of justice that was quietly built over
more than a decade.

In
May, the Consumer Financial Protection Bureau, the nation’s consumer
watchdog, unveiled the draft of a rule that would prevent credit card
companies and other financial firms from using arbitration clauses that
bar consumers from banding together in a class-action lawsuit.

While
Democrats, including Mr. Leahy, have tried to get rid of arbitration
through legislation, their efforts have met resistance from various
industry groups. The efforts by the consumer agency and now Health and
Human Services do not require congressional approval.

Like
other rules put forth by the administration, the rule on nursing homes
that receive federal funding could be challenged in court. But absent
those challenges, the rule is scheduled to go into effect by November.
Only future admissions would fall under the new rule.

The
nursing home industry has said that arbitration offers a less costly
alternative to court. Allowing more lawsuits, the industry has said,
could drive up costs and force some homes to close.

But some government officials and elder care
lawyers see a different rationale. For corporations, they say,
arbitration also potentially keeps embarrassing practices under wraps.

The
nursing home rule, which was first proposed in July 2015, was aimed at
improving disclosure. The agency began to re-examine the rule after a
chorus of patient groups raised concerns about the widespread use of
arbitration.

The
final version of the rule went a step further than the draft, cutting
off funding to facilities that require arbitration clauses as a
condition of admission.

Lawyers
who work with the elderly say that people are being admitted to nursing
homes at one of the most stressful moments of their lives. Distraught
and often desperate for a room, prospective residents do not fully grasp
what they are signing, the lawyers say.

Sometimes,
that does not matter. Judges are bound by a pair of Supreme Court
decisions, in 2011 and 2013, that blessed the widespread use of
arbitration clauses. Those decisions have made it virtually impossible
to overturn clauses, even those signed by the most vulnerable nursing
home residents.

An
appeals court refused to throw out an arbitration clause signed by a
man who could not read or sign his name, reasoning that “illiteracy
alone is not a sufficient basis for the invalidation of an arbitration
agreement.”

In the last decade, arbitration clauses have affected things like cellphone contracts, employment agreements and student loans.

But
even as the use of arbitration clauses spread, little was known about
what happened to those who took their chances there. Companies argued
that arbitration offered a simpler, swifter and less expensive
alternative to court, without the headaches and delays.

Those
claims, though, were largely anecdotal because arbitrations are
confidential and there is no federal database that records their
outcomes.

In
a yearlong investigation, The Times tried to pierce the veil, getting
inside the secretive proceedings. To do that, The Times examined records
from more than 25,000 arbitrations between 2010 and 2014 and
interviewed hundreds of lawyers, arbitrators, plaintiffs and judges in
35 states.

The
proceedings bear little resemblance to court. They have been conducted
in the offices of lawyers who represent the companies accused of
wrongdoing.

In
the case of nursing homes, The Times found many troubling examples
where issues of abuse and potential neglect never made it into the
public light because they were blocked from court.

In
May 2014, for example, a woman with Alzheimer’s was sexually assaulted
two times in two days by residents at a nursing home in Lemon Grove,
Calif. A subsequent investigation by the state’s department of public
health found the nursing home “failed to protect” the woman.

But
when her family tried to hold the nursing home accountable in court,
their case was scuttled because of an arbitration clause. Ultimately,
they gave up and settled with the nursing home.

After a lifetime of working hard, Linda Boamah thought she was setting herself up for a comfortable retirement.

But the former optical-lab worker became ill with multiple chronic conditions in 2014 and in less than two years lost everything, including her house, life savings and pride.

"I couldn't work anymore because I got congestive heart failure, COPD (chronic obstructive pulmonary disease) and am diabetic," said the 62-year-old East Side resident. "The money I had saved up was quickly depleted, and I was terrified."

Thankfully, a friend stepped in and offered Boamah a room to sleep in, sparing her from becoming part of the growing population of seniors living on the streets and in shelters.

About half of the homeless in the United States are people 50 or older, studies show. The number of older homeless adults is projected to increase by 33 percent in the next decade and double by 2050.

"We're at the beginning of the wave and have an opportunity to not only improve the quality of life of these homeless and formerly homeless elders, but also extend their lives," said Katrina Van Valkenburgh, central region managing director for CSH, also known as the Corporation for Supportive Housing.

The average life expectancy for a homeless older adult is 63 years, compared with 80 for someone who always has had stable housing, she said.

Leaders from across the Midwest are meeting in Columbus this week to talk about helping this aging homeless population get into and keep affordable housing. The two-day event is hosted by CSH and National Church Residences, which specializes in low-income and affordable senior housing.

It kicked off on Tuesday with a tour of two supportive housing properties owned by National Church Residences. Today, housing experts from across the country are meeting.

Aging adults who have been homeless experience chronic illnesses and geriatric conditions 15 to 20 years earlier than the general population, said Dr. Margot Kushel, a professor of medicine at the University of California-San Francisco who followed 350 homeless people in Oakland, California.

Although the median age of the participants was 58, they had more trouble bathing, dressing and eating than many in their 70s, 80s and 90s, Kushel said. They also had a harder time using transportation, taking medication, managing money, applying for benefits and arranging job interviews.

One answer is creating more affordable and supportive housing — the theme of today's gathering. Supportive housing complexes provide tenants with tailored services such as life-skills training, alcohol and drug abuse programs and case management so they can have more stable, productive lives.

After six months of living with her friend, Boamah was able to secure an apartment in June at National Church Residences' Commons at Third near Grandview Heights.

"I was so worried before about what was going to happen to me that I was making myself even more sick," she said. "I love my new home. It's peaceful and quiet."

Though supportive housing has been available for people who have been homeless or have struggled with addiction or mental illness for decades, they need to be adapted to the unique needs of older residents, Kushel said. Rooms, for instance, need good lighting and grab bars in the bathroom. Many residents also could use personal-care attendants to help them bathe and get dressed.

Leon Williams, 63, of the North Side, said if it weren't for the supportive services at Commons at Third, he'd probably still be living in a nursing home, where he landed in 2009 after falling and dislocating his shoulder. He remained there for six years because of prostate cancer, a knee replacement and a spinal condition that forced him into a wheelchair.

"Unlike the nursing home, I can come and go when I please," he said, adding that he enjoys eating at the many restaurants near his new home.

After two bouts of homelessness, mostly recently in 2005 after a difficult divorce that led to substance-abuse problems, Jerome Johnson, 47, of the West Side, said he's glad to have found permanent supportive housing at another National Church Residences property, Commons at Buckingham, while he is still relatively young and healthy.

"It took me a lot of work and paperwork to get here, and I'm never leaving if I can help it," he said.

Friday, October 21, 2016

The
elderly man hadn’t sought medical care in 20 years when he collapsed on
his way to the grocery store. At the hospital, he was diagnosed with a
bloodstream infection, dementia and tuberculosis. Doctors suspected he
had bladder cancer.

He’d
been abusive, and estranged family members refused to help in his
health care decisions. The man didn’t want any treatment, or even to be
evaluated medically. But his dementia deprived him of the mental
capacity to make his own decisions. Doctors kept him in acute care and
treated him for TB, as public health law required, but nothing else.

Three
months later, on the day his guardianship hearing was scheduled, the
man died from infections.

Could his infections, acquired in the
hospital, have been treated with antibiotics? Or was there a decision
not to treat the infections, to let them run their course? Either way,
who decided?

Chances are, the doctor in charge did. Chances are, the decision was made
“off the radar,” and did not follow hospital policy — if the hospital
even had a policy. Chances are, the decision was right, but arrived at
through a process that would not look good on a newspaper's front page.

The
patient lived and died in Colorado, but aspects of his story are
increasingly familiar in critical and acute care wards in Boston and
elsewhere.

These
patients go by many names: conserved, unknown and unrepresented,
unbefriended, incapacitated and alone, to name a few. The sad irony is,
they answer to none of them, and cannot inform their own care.

For
decades, public guardians — court-appointed decision-making advocates
for patients who need them — have been held up as the ideal for such
cases, but funding and other support have been inadequate. And in some
places, Massachusetts included, there is no public guardianship. Here,
how such decisions are made varies from hospital to hospital. Some rely
on private guardians; some have learned to avoid guardians.

This
hardly inspires trust in the system, and the need for a process that is
ethical, legal and serves the patient’s best interest is only becoming
more urgent.

Why
the urgency? Growing roughly commensurately with the doubling of
America's senior population, the ranks of the unbefriended are set to
rise from about 35 million in 2000 to a projected 72 million in 2030. In
Massachusetts, people 65 and older are projected to grow in number from 860,000 in 2000 to 1.5 million in 2030.

Decisions
about medical care ideally combine medical expertise about what’s wrong
and what’s possible with the patient’s own wishes and values. But with
the unbefriended, those wishes and values cannot be known.

In a medical system where patient autonomy rules, these patients have none.

About
a half million Americans die in critical care each year, including a
significant majority after a decision has been made to limit life
support. How many are unbefriended is difficult to say, but the low
estimate is nearly 6 percent, or about 30,000. It may be closer to twice that. In one urban hospital studied, one in four ICU patients who died was unbefriended.

In
Colorado, concern over elder abuse prompted the study of this patient
population. Similar studies going back three decades have been conducted
by the Markkula Center in Northern California, by the American Bar
Association, and the Conference of State Court Administrators, among
others. Each saw a growing wave of incapacitated patients and a court
system unprepared to deal with it. And each study recommended
significant improvements and funding for public guardianship, but
response has never met the need.

It simply costs too much, and unbefriended patients, by definition, have no constituency.

The
public clearly understands the harm of hastening death, with possible
exceptions for terminally ill patients suffering unbearably. But
prolonging dying is often considered a lesser harm.

That
is one source of the unbefriended dilemma, which pits civil rights
protections against patients' best interests. And in a society that
treasures individual choice so highly, a dying patient incapable of
making a choice creates a profound life-and-death quandary.

Douglas
White, a critical care physician and bioethicist from the University of
Pittsburgh, has studied unbefriended patients closely and says,
“Process is most necessary for a patient who will never leave the
hospital.”

I
believe hospitals need a clear, transparent process for decisions to be
made internally. Any such process will spark concerns over abuse or
physician bias. And yet, already there are models that are ethical,
legal and worthy of public trust.

Both
New York State and the Department of Veterans Affairs (the former by
statute, the latter by federal policy) keep the courts and guardianship
as options but give attending physicians full authority for medical
decisions.

Safeguards
are in place to ensure it is not the physician’s recommendation
alone. Both New York and the VA require second opinions and review by a
committee within the institution. Ultimately, the hospital is
responsible.

Research
into these patients is growing but limited. Many suffer dementia,
mental illness or addiction. Some are homeless. Some have scared off
loved ones; others have simply outlived them.

One small study
revealed this troubling fact: Unbefriended patients continued to
receive life-sustaining treatments such as feeding tubes, ventilators
and antibiotics for pneumonia significantly longer than comparable
patients who had decision-making surrogates.

Some
patients receive too much treatment and others, too little. For many,
death is prolonged. Their caregivers suffer conflict, moral distress and
burnout.

In
New York, for legal legitimacy, a decision to withdraw treatment with
the intent of allowing death to occur must meet these criteria: the
patient’s condition is incurable or irreversible; the patient is
permanently unconscious and expected to die within six months; and
treatment is causing unacceptable, even inhumane, suffering.

The
VA policy has a curious requirement. The physician must explain to a
patient that they have been determined to lack capacity. If the patient
cannot understand, why require a explanation?

One
reason: Capacity is not constant; for some patients, it comes and goes.
More significantly, I think, the VA has created a ritual by which the
physician must see the patient as a person, not an incapacitated set of
symptoms.

And so it was notable in summer 2015 when a California judge ruled
as unconstitutional a state law that allowed nursing home physicians to
make all decisions for incapacitated patients — because the law did not
require that patients be told and given a chance to object.

The
ruling did not solve the problem of over-treatment and under-treatment
of vulnerable patients. That problem continues, and not only in
California.

But
the ruling did underscore the need for an efficient and fair process
that respects the patient’s best interests and civil rights.
Massachusetts should protect its most isolated patients by writing this
kind of policy into law. Thanks to New York and the VA, it won’t require
starting from scratch.

NASAA also has proposed model state legislation that would allow
financial institutions to place a 10-day hold on disbursements whenever
firms or advisors believe harm may result to an investor age 60 or
older. FINRA has requested comments on a proposed rule that would do the same for accounts of people age 65 and older.

Stronger legal protections are: 1) expanding and clarifying the
definition of senior financial fraud; and 2) expanding the audience of
potential victims to include anyone above a certain age (e.g., 60 or
65). In the past, some statutes have focused only on fraud against
mentally impaired seniors or those living in institutions.

Claims of financial fraud often are made against family members, including those closely involved in senior caretaking. Consider these situations, and ask yourself whether they involve senior fraud:

A husband is caring for his 66-year-old wife, who is temporarily
incapacitated following a stroke. The husband wants to liquidate funds
from the wife’s checking account, in her sole name, to pay for care. He
writes and dates the check and guides the pen in her hand as she signs.
Several weeks later, their daughter files a charge against him, claiming
forgery.

A son is caring for his 85-year-old father in an assisted-living
facility. The father does not have access to a computer, but does have
an online account at MySocialSecurity.com. The son goes to the site,
verifies the father’s identity, and logs on with the father’s username
and password. The son then changes the bank account for receiving the
father’s Social Security benefits, so the son can access benefits to pay
for the care facility. Weeks later, a family member sees this change,
asks the father if he authorized it, and files a claim of senior
financial abuse against the son.

These are possible cases of senior financial abuse – even though the
caregiver has good intentions – and both situations could have been
avoided with planning. Here's how: (Click to Continue)

The American Health Care Association, an industry group that represents most nursing homes in the U.S., has filed a lawsuit against the federal government over a new rule that protects the right of patients and their families to sue nursing homes in court.

The new rule, which is part of a set of regulatory reforms set to take effect on Nov. 28, bans so-called pre-dispute binding arbitration clauses in nursing home contracts, which require patients and their families to settle any dispute over care outside the court system via arbitration.

As The Two-Way has reported, "The rule applies to facilities that receive money from Medicare or Medicaid — which is nearly all of them."

The lawsuit filed Monday in Mississippi by the American Health Care Association calls the arbitration clause ban "arbitrary and capricious" and contests the authority of the Centers for Medicare & Medicaid Services, which drafted the rule, to regulate how nursing homes handle disputes. The suit asks a federal court at least to delay the ban from taking effect when the rest of the rules become law in November, while the court considers the industry group's challenge.

The lawsuit also echoes comments made to NPR by an American Health Care Association spokesman in arguing that arbitration is "an equally fair — yet far simpler and less costly — means of seeking redress as compared to the complicated and slow-moving court system."

The American Bar Association noted in 2014 that "arbitration has a number of elements that lend to its reputation for efficiency and expediency, including traditionally faster timelines and therefore lower costs for case resolution." A 2009 study commissioned by the American Health Care Association found the average awards after arbitration in nursing home cases were 35 percent lower than if the plaintiff had gone to court.

"Long-term care facilities and their residents and residents' families should not be deprived of the ability to choose arbitration, a valuable form of dispute resolution," the suit states.

As we reported when the new rule was announced in September, it does not prevent patients and their families from pursuing arbitration if both sides agree to it.

The heads of the Department of Health and Human Services and Centers for Medicare & Medicaid Services, who are both named as plaintiffs, have not commented on the case since the lawsuit was filed.

Thursday, October 20, 2016

A Brick attorney who has long served as an advocate for the elderly and held himself out as an expert on elder law has been charged with stealing more than $1.2 million from elderly clients, authorities say.

Robert Novy, 65, whose office is in Manchester, was arrested on charges of first-degree money laundering, second-degree theft by unlawful taking, and second-degree misapplication of entrusted property, according to a statement from the Office of Attorney General Christopher Porrino. He was taken to Ocean County jail with bail set at $500,000.

“While Novy held himself out as a leading legal advocate for the elderly, we allege that he corruptly used his reputation and his law license to prey on vulnerable seniors, taking control of their finances and stealing more than $1 million from their life savings.” Porrino said in the statement. “In his greed, Novy not only betrayed his oath as a lawyer to uphold the law, he betrayed all standards of decency.”

Many of the victims were people without close relatives or were of diminished capacity, Porrino's office said.

"Bob Novy has had a distinguished career as an attorney and has helped many people over his 40 years in practice in elder law,"Krovatin said. "He denies these charges and he will fight them with every bone in his body.”

Novy spoke about elder law on “Inside the Law,” a radio program on WOBM-AM – the station’s website shows he covered topics such as estate planning, wills, powers of attorney, Medicaid, real estate settlements and asset protection. In an episode in May 2015, Novy interviewed a sergeant with the Ocean County Prosecutor's Office about scams targeting seniors. (Click to Continue)

KINGSTON, LUZERNE COUNTY (WBRE/WYOU) -- Pennsylvania seniors looking for some help to pay for their home renovations may be in luck. A state senate bill was just introduced to provide older homeowners a tax credit worth thousands of dollars.

Of the hundreds of senior citizens attending this year's Luzerne County Senior Expo at the Kingston Armory on Thursday, many are concerned about the financial pinch they and others in their age bracket feel. "You know, people are on a fixed income. A lot of people don't have a lot of money," said Nancy Beach of Berwick. The last thing older homeowners need is a costly repair they cannot afford. 83-year-old homeowner Bob Stiff of Jackson Township said, "Got to replace a furnace, eight or $9,000. A roof." Retiree Bonnie Dunnigan owns a home in Carverton. "I'm gonna need some repairs but I'm not giving it up. I'm not going into any kind of senior living yet," she said.

State Senator John Yudichak (D) 14th District reflected on the situation facing many older Pennsylvanians. "Now, because of maintenance conditions, they're forced to go into their pocket, it becomes very difficult." Enter the Aging in Place bill. It's a measure introduced in the state senate in September. Senate Bill 1382, which Sen. Yudichak co-sponsored, would establish the Livable Home Tax Credit. Under the legislation, eligible homeowners would receive a tax credit up to $2,000 to renovate their homes to meet accessibility needs. The credit would expand to up to $5,000 in its second year allowing more older Pennsylvanians to stay in their homes. "That's where we should have folks living out their days, their golden years. They've built this country. They've build Pennsylvania. They've made their contribution," said Sen. Yudichak.

State Senator Lisa Baker (R) 20th District serves on the State Senate Aging & Youth Committee. "If we can do some minor things and keep people in their own home with some supports, it's where people would like to be if they don't need that higher level of care."

Sen. Yudichak said he hopes the Aging in Place bill will go the Senate Aging & Youth Committee to push for a hearing and put it to a floor vote by the end of the year.

Wednesday, October 19, 2016

There may come a time when some of us face the painful decision of putting our parents or grandparents in a nursing home because they need full-time professional healthcare.

If you or a loved one does have family in a nursing home, you should
be aware of a new rule that the Centers for Medicare and Medicaid
Services (CMS) says will, for the first time, allow consumers to sue
nursing homes for neglect. Before now, most long-term care facilities
have included arbitration clauses in the contracts that would block the
family from suing over alleged neglect. According to the ABA Journal,
healthcare industry lawyers say a challenge to the new rule is likely.

Ginalisa Monterroso, CEO of the Medicaid Advisory Group Opens a New Window. ,
who has spent more than 25 years in the healthcare industry, discussed
with FOXBusiness.com what the new ruling means for nursing home
residents and what you can do to ensure your loved one is placed in a
safe environment for long-term care. Here is what you need to know.

Boomer: What rights do consumers and families now have under this new rule?

Monterroso: The new ruling, allows nursing home residents
and families to take residential facilities to court and pursue justice
for wrongful care. This decision is long overdue and a victory for all
families and former nursing home residents, who, were unable to sue
their nursing homes even when they were negligent. Before this ruling,
families and patients were forced into arbitration where they frequently
did not have the justice system by their side. In most cases, the
public never got to hear about these cases of abuse because the dispute
was discussed behind closed doors where the media and others couldn’t
hear the allegations. And worse, when the arbitrator ruled against the
nursing home and forced a ruling, no one got to hear the end result, or
even the initial claim.

Boomer: What steps should family members take in researching nursing homes – before signing a contract?

Monterroso: Most important, don’t ever feel rushed to pick
a facility because a hospital is pushing a discharge. The hospital is
aware you are allowed to view facilities and make the appropriate choice
for your loved one.

When making a decision to admit a sick loved one into a long-term
care facility, never act on impulse, or even take a quick
recommendation from the treating health professionals (who may recommend
any facility to quickly discharge the patient). Medicaid Advisory Group
recommends scheduling a tour of the facility before being admitted.
Everyone has a right to pick and visit a facility. Medicaid Advisory
Group urges everyone to visit the exact floor and room the potential
resident may be admitted. You can also research the nursing home on this
government website: https://www.medicare.gov/nursinghomecompare/search.html Opens a New Window. .

That Medicare website is star rated - one star being the lowest score and five being the highest and most recommended facility.

Think of a nursing home admission as picking a babysitter for
your child. We as consumers forget our elderly, sick and disabled need
all the essentials our children require when making a placement.
Google
the facility and click news to see if the facility has had any negative
press. Check references and ask to speak to any residents or families at
the facility. You should also check online with the State Department of
Health to see if the facility was ever sanctioned or fined. Most of all
go with your gut feeling. If something doesn't feel comfortable,
believe your instinct.

Boomer: How can family members detect if their loved ones are at risk of abuse?

Monterroso: When visiting their loved ones in long-term
care facilities, if you see your loved one suddenly change in behavior
and they seem agitated, irritable and being aggressive, that’s an
indication something is not right. Many patients who have dementia are
the ones who are being abused due to the fact everyone thinks they are
forgetful or making things up. If a loved tells you, someone, physically
or verbally abused them -- investigate the allegation. Speak with the
nursing station, ask questions. Report the concern to the facilities
administration, never ignore the resident. 90% of the time there has
been some mistreatment, whether they were being yelled at, shoved or
ignored that would make that resident tell you about an incident.

STAUNTON — A
special prosecutor on Monday dropped the case against a Stuarts Draft
attorney accused of insurance fraud, agreeing that a main witness in the
case lacked credibility and had submitted false documents.

The
decision came nine months after the public announcement that an Augusta
County grand jury had indicted attorney Frankie Coyner on a charge of
obtaining money by false pretenses. Coyner represented the potential
main witness and one other person in an insurance claim.

But
on Monday, special prosecutor Amanda Clymer told Judge Edward Hogshire
that the main witness had falsified documents. Clymer requested nolle
prosequi — Latin for "not to be prosecuted" — of the charge against
Coyner. The request is a legal term that, for all intents and purposes,
means the case is being dismissed, either because of a lack of evidence,
a major flaw in the prosecution's case or because the prosecutor
believes the accused is actually innocent. The judge granted the
request.

Technically, a nolle prosequi could be withdrawn, but such an reversal is extremely rare and highly unlikely in this case.

Defense
Lawyer John Zwerling of Alexandria said the prosecution witness had
multiple fraud convictions, adding that she had misled Coyner about the
amount of money she and a partner were making in a dog grooming
business.

The
basis for the insurance claim was damage to a mobile home the two were
using for the dog grooming business. Zwerling said the charge against
Coyner was brought despite the Virginia State Police never having
contacted the attorney until his arrest.

"They never questioned him or his assistant,'' Zwerling said.

An
insurance investigator became suspicious of the claim because of checks
submitted to show a stream of income. The investigator determined the
checks were in the same exact sequence, despite being weeks or months
apart, Zwerling said. In reality, the dog grooming business was a cash
business.

Zwerling
said the witness might have had to invoke the Fifth Amendment if she
had testified on Monday. The defense attorney said that beyond the
facts, Coyner would never have risked his legal career for a $15,000
insurance settlement.

"For a personal injury lawyer, that is small potatoes. It's not worth putting his career on the line,'' Zwerling said.

Coyner, who has practiced law for decades in Waynesboro, Staunton and Augusta County, had only one comment on Monday.

"I wouldn't be standing where I am today if I didn't have the best lawyer there is,'' he said.

Coyner has continued to work while waiting for the case to be tried, and said he would be busy with court cases on Tuesday.

This is a status report provided by the New Jersey State Bar
Association on recently passed and pending legislation, regulations,
gubernatorial nominations and/or appointments of interest to lawyers, as
well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.

The
association urged flexibility in the use of required forms for
guardianship of incapacitated adults in response to the report and
recommendations of the Supreme Court Civil Practice Committee on the
proposed revised and new model forms. Citing the complexity and unique
nature of guardianship matters, the NJSBA expressed concerns that the
model forms do not appear to collect enough information required to meet
the guardianship standards established by court rule.

As an
alternative, the association suggested it should be acceptable practice
to supplement the forms to alleviate potential confusion and delays in
guardianship actions to the detriment of the incapacitated person. The
association pointed out that there is no standardized form of complaint
and urged references to Rule 4:86-1 be included within the package of
forms so that applicants know where to find the requirements applicable
to a verified complaint.

The report and recommendations of the committee proposed the following model forms:

Tuesday, October 18, 2016

INDIANAPOLIS (AP/WLFI) — A grand jury has indicted the former CEO of a
company that operates dozens of Indiana nursing homes, accusing him and
three others in a kickback scheme.

Federal prosecutors in Indianapolis released the indictment Wednesday
morning. It charges former American Senior Communities CEO James
Burkhart with mail and wire fraud and money laundering. American Senior
Communities fired Burkhart last September, three days after federal
agents searched his home and the company’s Indianapolis headquarters.

Specifically, prosecutors say the defendants used shell companies to
falsify and inflate costs of goods and services to steal discounts and
rebates and conceal kickbacks in a scheme worth hundreds of thousands of
dollars.

Burkhart’s defense attorney, Larry Mackey, had no comment. American
Senior Communities did not immediately respond to email and phone
messages seeking comment.

ASC manages dozens of properties in Indiana, including two in
Lafayette — Rosewalk Village on Union Street and Aster Place on Park
East Boulevard.

The company issued a press statement Wednesday that read:

American Senior Communities is grateful to the
United States Attorney’s Office and the federal agencies whose hard work
and dedication resulted in today’s indictment. ASC has actively
cooperated in this investigation and will continue to cooperate until
the prosecutions are concluded. ASC was the victim of a betrayal of
trust by two of its former officers.

ASC continues its strong tradition of providing excellent care, which
has made ASC a valued and respected provider of senior care in Indiana.
Nothing in the investigation or this prosecution involves resident
care. ASC’s primary focus continues to be exceptional resident care.

ASC appreciates the commitment of its employees and continued support of its families.

ASC has emerged from this process a stronger,
more vital organization. ASC has implemented many safeguards, and
strengthened the organization with new leadership under the direction of
CEO Donna Kelsey. ASC skilled nursing and residential facilities
continue to enjoy quality ratings that exceed state and national
averages.

A: I do guardianships on the vulnerable that the court has found that probably needs guardianships, because there is nobody else to be their advocate, take care of their possessions, take care of them, and to make sure that they have a quality of life that they most deserve. I am a last resort as the public guardian. If we can get family or somebody else to do those guardianships, of course that’s sometimes always better, if there’s accountability there.

Q: How many guardianships do you take on at one time?

A: I have a county ordinance that says I can only do 25.

Q: How do you aid in promoting quality of life?

A: I have, I think 18, at the Highland Manor … Mainly because it’s convenient for me and most of my people have lived in this community all of their life. This is where their family is. This is where a lot of them grew up or they worked their whole lives. So, this is where I feel they should be as long as they’re being taken care of. Some of them I do have in different facilities, but it’s only because their family might live in that town or they need a specialized type of care. I’m probably at the Manor four or five times a week. Yes, I do outings with them.

I make sure they have Christmas. I make sure that their birthdays are taken care of. ... They're taken care of but they still enjoy some of the ... things in life that make their life still enjoyable. I have a gentleman that used to like to fish, and he can't anymore, but when me and my husband go fishing, and then we cook a bunch of fish, I always take a bunch to him so he can have a nice fish dinner.

It’s just those little type of things. Some people say you’re not supposed to get connected with them or feel those type of things, but sometimes you can’t help but have that feeling for them, and with some of them I’m very, very connected.

... Sometimes, it’s just the little things that make a big difference. Sometimes it’s just a hug that makes a difference to them. I have a little Yorkie that sometimes I’ll take into the Manor and I have one lady that just loves her, and sometimes, when she’s not feeling very good or something, I’ll take the Yorkie in there and just let her hug her.

Q: Do you think there needs to be a call for more people in Elko County to step up to be accountable, to take care of their family member?

A: Yes, and I’ve seen probably within the last four or five years that. Mainly because our population is getting older. We have more elderly people in our county that’s not getting the medical care that they should be getting, because, right now, quite frankly, our medical care isn’t that great. Some of them are struggling to get by every month on their incomes. Some of them are even outliving their family members, unfortunately. Some of our family members are into the drugs, and so, their elderly family members aren’t being taken care of. Our mental health (care) in the State is not that great. A lot of our family members need to step up. However, that’s not always the best answer because that’s why some of us are having to step in as guardians, public guardians, because that’s not working.

Q: Are you court mandated? How does your process begin?

A: I’m appointed as the public guardian for Elko County. Every county has to have a public guardian. Therefore, how I get appointed is I start with a referral process and I usually get those referral processes from either the hospital, Division of Aging (Nevada Aging and Disability Services Division), it could be from law enforcement, it could be from another family member. It could come from anybody that thinks that there’s a person that needs a guardianship or needs help. From there I do an investigation, and what I consider when I do an investigation is, are there other alternatives.

Are there least restrictive alternatives? Because you always want to give that person the benefit to get help without going through the process of a guardianship. If that has not been either successful or it has not been tried as a least restrictive type resource, then I would, for sure, try to make sure that’s implemented with another resource that we have here in Elko County. Or, at least, try to get a family member involved to help this person. If that isn’t successful, then I will go through with a guardianship. … The person the guardianship is being sought on always has the right to have an attorney, that’s their due process.

Q: How do you find recent changes in Nevada concerning guardianship beneficial?

A: I’ve been a guardian for 15 years. So, I’ve kind of worked in the business where every year there has always been a little bit. We started out with a little bit of guardianship laws and then grown to every legislature year to try to get a little bit better, but it’s never quite gotten that way. So, I think the commission for reform has really been kind of a godsend to Nevada as far as the family guardians, the professional guardians, private professionals. As far as accountability, there wasn’t much accountability in our courts as far as that.Q: How has Elko County’s implementation to promote accountability in guardianship helped?

A: My courtrooms are usually in Judge (Nancy) Porter’s. … As far as adult guardianships, I think that Judge Porter is very diligent, very careful, very sincere on the guardianships and she is the one that makes us accountable as guardians. ... For her to be there, it’s been a job for her to get that in place, her and her staff, but I think it’s been very good for our county mainly as far as family guardianships.

Q: How has that helped you in particular?

A: … My job, I’m very sincere in my job. I’ve been here for 15 years and I’ve seen a lot of guardianship abuse within a family, because I’ve had to take the guardianship over because a family has been abusive or exploiting, or that type thing. ... I like to be accountable for taking care of my people. ...You have to be a very sincere person to that person’s everyday life issues and what goes on in their everyday life as far as giving them a quality of life. It isn’t all banking and it isn’t all money and manager, and doctors and physicians. It’s also about caring. When you’re doing your job as a guardian, all of that comes into play, eventually, in the court.

The first session of the Oct. 18 event begins at 4 p.m. at Flowing Wells Community Center, 1660 W. Ruthrauff Road. The second session starts at 5:45 p.m.

Both sessions are hosted by Pima County Superior Court and the Pima County Bar Association.Attorneys Michael Aaron, Angela Hurtado, Lisa McNorton and Juan Perez-Medrano will present sessions on divorce, child support, paternity and custody, according to a news release.

The topics of probate, guardianship and conservatorship will be presented by attorneys Thomas Curti and Carrie Rednour.

Sessions about debtor and creditor, and landlord and tenant will be offered by attorneys Beverly Parker and Steve Cox.

After each session, the attorneys will take questions from the audience, but they cannot give legal advice or discuss specific cases.

Representatives from the Arizona Attorney General’s Office, Division of Child Support Services, National Alliance on Mental Illness of Southern Arizona, and Casa de los Niños will also be available to answer questions and provide information, according to organizers.

Monday, October 17, 2016

Retired Orange County Superior Court Judge Betty Lou Lamoreaux was such a force in juvenile justice that the seven-story family court building bears her name.

Every day, hundreds of children and their parents stream through the doors of the Lamoreaux Juvenile Justice Center in Orange. Some are in trouble with the law, some are from fractured families. All are hoping for justice tempered with mercy.

Now Lamoreaux is in danger of being financially drained, in part by the very justice system to which she dedicated her life.

Lamoreaux, 92, has Alzheimer’s dementia, according to court records. Her family – mostly nieces and nephews, as Lamoreaux has no children – is trying to care for her and preserve her estate. But they’ve fought over how best to do that, and about who should be in charge of Lamoreaux’s money, and they’ve taken the fight to probate court.

The family dispute has grown to include no fewer than three judges and nine lawyers and related professionals, with more attorneys set to join the fracas.

Now, some in the family are afraid the trip to probate court could end with attorney fees swallowing up “Auntie Lou’s” nest egg, forcing her to sell her $1.8 million house in Newport Beach.

They argue that the particulars of probate court are problematic.

“The very court system she served, and was honored by, is now bilking her of her life savings,” says Duff McGrath, her 58-year-old nephew and her trustee.

“It wouldn’t happen to Betty Lou Lamoreaux if it wasn’t happening to a lot of other people. The system is flawed.”

McGrath’s frustrations are echoed by many in probate court – where the affairs of a loved one can be taken out of the hands of family members and turned over to experts who often are paid hundreds of dollars an hour. Every year, nearly 5,000 probate-guardianship cases grind their way through probate court in Orange County.

In theory, the work is done by sincere professionals trying to protect their clients.

But by nature, the process of turning one’s affairs over to lawyers and their subcontractors can get expensive, even when fees must be approved by the court.

Good work, some argue, takes time. And in probate court, time definitely is money.

“Even if you’re trying to do a good job (on behalf of the client), the longer it takes to do a good job, the more money you get,” said Kurt Eggert, director of the Alona Cortese Elder Law Center in Orange.

“There is the incentive to prolong the case.”

Until 2014, Lamoreaux shared her Newport Beach home with her 87-year-old sister, Shirley, and a niece. Over the years, as Lamoreaux’s dementia worsened, her house fell into disrepair, to the point of being unhealthy, according to court records.

McGrath and some family members went to probate court in 2015, hoping to get a court order that would give them the authority to separate Lamoreaux from those they felt would do her harm.

McGrath had moved Lamoreaux from her house to a senior living center in Corona del Mar while her home was undergoing repairs.

The court responded by appointing two people to the case, an attorney and a guardian – who also is an attorney – to represent Lamoreaux.

That’s when the legal wrangling began.

The court appointees, after speaking with Lamoreaux, believed she wants to move back home with her sister. A judge agreed and ordered McGrath to help Lamoreaux return home, a ruling McGrath has appealed.

McGrath hired his own legal team, who argued that Lamoreaux should stay at the center, which they noted has the expertise and facilities to care for her.

Along the way, the case picked up more professional consultants, a fiduciary and a few more lawyers, all charging from $200 to $450 an hour.

McGrath said the total, when everybody is working – including his attorneys – is about $3,000 an hour.

Experts hired in the case declined comment or did not return telephone messages.

Lamoreaux’s fate now is in the hands of Judge Kim R. Hubbard. A hearing is set for Tuesday to determine whether McGrath should be removed from his trustee position.

Lamoreaux’s physician has indicated that she should not be moved at this time, and she repeatedly tells friends that she wants to stay at the center, according to court records.

The attorney appointed by the court to represent Lamoreaux, Ernest Hayward, requested this week’s emergency hearing to determine whether McGrath should be thrown out as trustee and replaced with a professional. McGrath accuses Hayward of attempting to wrest more control over Lamoreaux’s affairs.

Regardless of who is right, finding the answer may get even more expensive than it’s been so far.

“We fell into a spiderweb,” said McGrath. “It’s been a year and a half of hell.”

The Nevada attorney general’s office received a $925,000 grant to help prevent abuse and exploitation of the elderly.

The Justice Department’s office on violence against women awarded the grant to fund programs to help law enforcement serve elder victims of partner and caregiver violence, exploitation, stalking and neglect.

Three teams of trainers will be formed to serve Clark County, Washoe County and rural Nevada communities. A fourth team will serve the entire state and will consist of members from the Nevada Aging and Disability Service Division, the Inter-Tribal Council of Nevada, prosecutors and law enforcement.

These teams will work to train law enforcement officers across Nevada, along with judges, prosecutors and victim service providers. The teams also will work with the Nevada Network Against Domestic Violence.

“With the receipt of this competitive grant award, we aim to raise awareness about and improve the statewide law enforcement response to the abuse and exploitation of Nevada’s elders,” Nevada Attorney General Adam Laxalt said. “We look forward to working closely with our grant partners to assist local jurisdictions in addressing victim safety and perpetrator accountability.”

After her husband died and the days became a bit long, Donna Pfeif’s doctor gave her an unusual prescription.

“Get a cat.”

Sadly, the first animal she adopted became sick — and costly — and eventually had to be euthanized.

Pfeif didn’t think another animal would be possible, but today she is enjoying the funny antics of a 12-year-old feline named Puddy, as in the famous Looney Tunes’ line, “I tawt I taw a puddy tat.”

Their friendship came by way of a local nonprofit that has started pairing older cats with older residents. Hearts That Purr Feline Guardians not only helps with the matches, but director Jeanmarie Schiller-McGinnis and her volunteers stay in touch regularly — and the organization maintains ownership of the cats.

The nonprofit got started in 2013, with Schiller-McGinnis taking in older cats that had outlived their owners, or who couldn’t stay home because of their owners’ failing heath. She got the senior foster program going a year ago and so far has placed about nine cats with senior companions.

“It’s not an adoption,” she said. “They are fostering the cat, but we retain legal ownership.”

Schiller-McGinnis helps out with the costs that sometimes prevent people from pursuing pet ownership: veterinary bills, food, ongoing care. Once a foster is in place, if the person can no longer take care of the cat for any reason, Schiller-McGinnis takes it back.

For Pfeif, that was key.

“I would never have taken in another animal if she weren’t taking on the vet bills,” she said. “I couldn’t afford it.”

The program has been underway for less than a year, and Schiller-McGinnis is looking for more volunteers to help her realize her vision. Eventually, she hopes to rescue more older cats from local shelters.

Shari Ronstadt said Hearts That Purr dramatically changed her mother’s life. Katherine Fitzpatrick, 93, lives at Villa Maria Assisted Living and, a couple months back, lost her longtime cat, Millie.

“I saw her outlook, her energy, her demeanor, everything start to slide,” she said. “She told me she hated to go back to her apartment because there’d be nobody to greet her at the door.”

Fitzpatrick was reluctant to get a new cat, but knowing she’d have help and support sealed it. She has been fostering Eddie, who is 10 and hails from Yuma.

Sunday, October 16, 2016

In Blue Island, Illinois, Tami Neumann is committed to a dementia
friendly city—and dreams of taking the transformations further.

Most cities have limited financial resources for such an endeavor, but
the fact remains: "More and more people will have to age in community,"
says Neumann, Chief Operations Officer at the Silver Dawn Training Institute. According to the Alzheimer's Association's 2016 Facts & Figures report,
approximately 58 percent of older adults with Alzheimer's and other
dementias live in the community. Of that number, 75 percent live with
someone else; the remaining 25 percent live alone.

Creating sweeping change in communities may be difficult, but it's
not impossible—and Neumann believes the "simple things" often make the
biggest difference. And how do you build a sustainable dementia
friendly community? By training others to carry that mission forward,
which is at the heart of Neumann's work with partner Catherine Braxton,
the Chief Education Officer at Silver Dawn.

Let's explore these elements of building a dementia friendly community.

Buildings. Design is critical, and there's a quick way
to determine whether a building is dementia friendly. "If I'm lost in
your building, that's the easiest litmus test," says Neumann. Buildings
should also provide an entrance that doesn't include steps, because many
individuals with dementia have a combination of depth perception,
mobility, and balance issues.

Restaurants: "How do you take Mom out to eat without
calamity?" Neumann asks. Training for restaurant staff would be
tremendously helpful, but caregivers can take control by planning ahead.
Use an app like OpenTable,
Yelp, or Urbanspoon to make a reservation; a long wait can frustrate a
person with dementia, or cause anxiety. Choose a restaurant that isn't
crowded, busy, or loud—overstimulation can trigger feelings of anxiety,
fear, or frustration too. Call in advance for specials or menu options,
or pull up the menu on your phone or tablet. Discuss selections—perhaps
even place your order—before
you arrive. Besides the overwhelming process of choosing items from a
large menu that may be difficult to read or interpret, it eliminates the
need for communicating with the server, which can be incredibly
stressful for the person with dementia who struggles with speech and
language.

Businesses:The Purple Angel logo is
quickly becoming a (global) sign of dementia friendliness, displayed in
the window of gyms, grocery stores, and other community hot spots to
indicate its employees are sensitive to the needs of patrons with
dementia and prepared to assist in any way necessary.

Schools: Neumann dreams of training children in schools
to communicate better with grandparents or parents. Tools that work
intergenerationally are ideal, says Neumann, and equipping the whole
family to care for a person with dementia takes the burden off the
primary caregiver.

First responders: When a person with dementia wanders
and is found by a first responder, what happens next? Training for
police officers and first responders is critical, because their ability
to assess the person with dementia accurately may mean the difference
between transporting the individual to a safe place (like a hospital) or
getting them to the primary caregiver's place of employment, rather
than returning them to the home the individual has wandered from
already.

What can I do to build a dementia friendly community?
As Neumann says, everyone can contribute to "creating a community that can help." Here are a few ways to start.

First, be aware of people in your neighborhood and in the places
you frequent who are living with Alzheimer's or caring for someone with
dementia. If they live nearby, get to know them, and keep an eye
out for unusual, concerning circumstances—for example, smoke coming from
inside, which could indicate something was left on the stovetop, or a
pet loose in the yard, which could indicate the person with dementia
left a door open and perhaps even wandered from the home. Bring them a
meal. Help them load groceries into their car. Guide them if they seem
unable to find their destination.

Talk to your children and grandchildren about dementia. Encourage
them to support classmates or friends who may be witnessing a dementia
decline in their own home or family. Foster a brain-healthy lifestyle in
your home, by exercising, doing crosswords, or enjoying brain-boosting
foods together. (Check out this article for more advice on talking to your kids about caregiving.)

Use your influence to inspire change. Know someone who works
for your city's Chamber of Commerce? Have connections to the local
police department? Are you active in your school district's PTO or a
member of the board? Talk to them about dementia friendliness; encourage
them to provide training to key personnel.

Over the last several weeks, we’ve written several articles about the obligations and responsibilities of guardians. We have written these articles to guardians to help give them an overview of the process, some practical tips, and to remind them they are not alone. This time I want to change gears a little and write to the potential ward.

A guardianship should be a last resort. It is court-ordered supervision over your life, your medical care, and your finances. I have great respect for the judges in our community, but no judge can ever know you, your wishes, or your family as well as you do now. You can put a plan into place so that you well cared for, and have the best quality of life, while you are alive but no longer capable of managing your own physical, medical, and financial matters.

In Nevada, a guardianship over you should not be necessary if you have a proper estate plan in place. An estate plan can seamlessly provide for that period of time when you are alive but not well. Your successor trustee and power of attorney can seamlessly step in to manage your assets and property without having to slog through the court system. Additionally, as your successor and agent, that person continues to have the high duties to manage your assets for your care – just like a guardian.

By creating an estate plan, you have the opportunity to pick your own successor – instead of leaving that decision to an unknown judge at some future date. You know who in your life is best with finances, knows your wishes, and will be there for you. You can hand-pick that person to step in to take care of your finances. You can talk to them now about what your wishes are, where you want to live, and how your assets are to be spent.

By creating a trust-centered estate plan, you can impose controls upon your agent that might not otherwise exist. For example, you can direct them to provide accountings to certain people that might not be entitled to them under state law (such as a long-term significant other, friend, or professional advisor). By creating a trust-centered estate plan, you can also give your agent the freedom to do certain things that would otherwise require court-approval, like: making gifts to your children or grand-children for education, medical, or other purposes; selling or renting your home; taking a loan out to cover your expenses; or even continuing the operation of your business.

Additionally, a proper estate plan would include the authority for your loved ones to deal with your health care. In addition to the health care power of attorney, which gives another the ability to make medical decisions if you cannot, a proper plan should address privacy releases. Such releases would allow a broader class of people to talk to the doctor, even if they cannot make medical decisions for you. A proper estate plan can also provide direction on long term care, pain management programs, and physical therapy.

No estate plan should ever be focused solely on what happens to your stuff after you pass away. Instead, a good estate plan should always provide for your care while you are alive but not well, even if you are getting better. It is key to seamlessly provide for your care, both physical and financial. If those pieces are in place, then you and your family may be able to entirely avoid the cost, delay, and the trauma of a court-ordered guardianship. You can put into place a plan that reflects what you want, and who you want, to care for you.

The legislation that
Sen. Chuck Grassley introduced would address many of the concerns
expressed in the recent Register story by taking a comprehensive
approach to improve prevention, awareness, investigation and prosecution
of crimes targeting seniors [Could elder abuse be prosecuted more often, Oct. 2].

In
2014, my parents were victims of elderly fraud of more than $44,000 by
Leading Health Source. On my own $21,000 was refunded and Iowa's
attorney general sued Leading Health Source for the remainder $23,000 in Iowa civil courts.

Could
more been done by involving the Iowa criminal courts? Leading Health
Source was not charged with any criminal acts, which allows them to
continue the abuse of elderly people.

Ensures
that federal prosecutors in Iowa and across the country are tasked
with, and equipped to, address the specific challenges of crimes against
seniors. It also calls on the Justice Department and Federal Trade
Commission to develop agency-wide policies on elder justice in order to
provide a consistent and effective response to these crimes.

Increases criminal penalties and jail time for those who use telemarketing or email in their schemes to defraud seniors.

Improves
training for state and local governments to help communities across
Iowa better prevent, investigate and prosecute these crimes, as well as
helping victims to recover.

Helps gain a better
understanding of these crimes through improved documentation and
information sharing so we can continue to develop the best prevention
and response plans possible.

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NASGA (National Association to STOP Guardian Abuse, Inc.) is a 501(c)(3) public-interest, civil rights organization formed by victims of unlawful and abusive guardianships and conservatorships. We seek legislative reform of existing law and upgrading of criminal penalties for court-appointed fiduciaries misusing protective proceedings for unjust enrichment and engaging in elder and family abuse.

Our mission is to promote the safety and well being of vulnerable persons subject to injury and damage in their person and property through unlawful and abusive guardianship and/or conservatorship proceedings; to end the growing violations of due process, civil and human rights; to work towards ultimate legislative reform of guardianship as presently practiced; upgrading of criminal penalties for court-appointed fiduciaries misusing protective proceedings for unjust enrichment; and to be a support organization for victims and their families. We carry out our mission through research, outreach, education and advocacy; and going forward, by alliance with community interest, law reform, civil rights and other advocacy organizations.

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